Moreover, high-level NSA executive Bill Binney – who created the agency’s mass surveillance program for digital information – made it easy for the NSA to catch bad guys without spying on innocent Americans … all while strengthening America against security breaches.

(Binney is a 32-year NSA veteran widely regarded as a “legend” within the agency. Binney was the senior technical director within the agency and managed thousands of NSA employees. Binney has been interviewed by virtually all of the mainstream media, including CBS, ABC, CNN, New York Times, USA Today, Fox News, PBS and many others.)

But after 9/11, the NSA instead switched to the current system which conducts mass surveillance on all Americans. Specifically, the system rolled out by the NSA after 9/11 used parts of Binney’s system … but stripped out all of the encryption which would have protected Americans’ privacy absent a court order.

Why Did They Do It?

Whydid the NSA switch from the privacy-protecting system which worked to catch terrorists to one that spied on all Americans in violation of their constitutional rights?

A very high-level congressional committee security staffer – Diane Roark – gave a hint on a Frontline show this month. Roark was the congressional staffer in charge of overseeing the NSA for the Republicans on the House Intelligence Committee.

NARRATOR: [Senior House Intelligence Committee staff between 1985-2002 Diane] Roark was summoned to the top deck at the NSA to meet with Director Hayden.

DIANE ROARK: My whole point in going there was to ask him why he had taken off the protections, the encryptions and the automated tracking. I asked this any number of times, and he always evaded answering. And I finally just decided I was not going to leave the room until I got an answer. And so I kept asking.

So about the fifth time, he looked down, and I rememberhe could not look me in the eye, and he said, “We have the power. We don’t need them.” And he made clear that the power he was referring to was the commander-in-chief’s chief’s wartime authority.

In other words, the Constitution was tossed out the window and all Americans have been subjected to Orwellian surveillance ever since – not because it’s necessary or even efficient – but simply because they decided that they had the raw power to do so.

Washington’s Blog asked Roark to explain what the NSA chief meant when he told her that NSA had the power to ignore the Constitution. She explained (via email):

Article II Powers

General Hayden referred to the President’s Article II powers [as commander-in-chief during wartime]. The Administration has defended these powers as allowing the President to override existing laws, and has said that the 2001 congressional Authorization for Use of Military Force (AUMF) was in essence a declaration of war and thus allows him to do so. The AUMF has never been revoked, and this obviously is necessary to stop the practice. In its January 2006 White Paper defending the portion of the program that had leaked in the NYT, toward the end DOJ also argued that wartime surveillance did not have to be accomplished “in the lease intrusive manner possible,” or words to that effect.

The use of Article II is continuing, despite extremely permissive legislation such as the PATRIOT Act and the FISA Amendment Act of 2008. While all eyes are focused on PA provisions 215 and 702, that fall under the FISA court, it appears that the great majority of the collection actually occurs under Executive Order 12333, invoking these Article II powers. Those powers are not subject to even the very weak FISA Court oversight (that was further eviscerated by the FAA in 2008). Regarding EO 12333, see Richard Clarke’s testimony before Senate Judiciary 1/14/14 in answer to Sen. Chris Coons. Greenwald/Snowden documents also reference the EO.

I believe the executive prefers this even more secret exercise of power mostly because Americans would be rebellious if they knew the full extent of surveillance. Another reason for invoking them appears to have been Mr. Cheney’s known determination to recover presidential powers, especially national security powers, that he believed were much weakened after Watergate; this issue was covered by Frontline. And of course the administration would claim it is because of the need for secrecy so terrorists would not take precautions — although as Greenwald notes, there is now “nowhere to hide,” at least to communicate electronically in privacy.

The exercise of these alleged powers appear to include, e.g.

– past torture and rendition practices

– massive “upstream” collection from fiber optic cables as referenced in Snowden documents and as revealed by Mark Klein in 1/06.

– collection of citizen “business records” other than communications records.

– claiming state secrets to avoid regular (Article III) court review of such tactics, as well as withholding from these courts the source of evidence against defendants that was collected through such means, including “parallel construction” of a fake evidentiary trail to present during trial discovery. See e.g. Reuters 8/13, http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805.
DOJ went so far as to allow the Solicitor General to lie (apparently unknowingly) to the Supreme Court about this.

THINTHREAD

One part of [Binney’s system] that was critical to The Program [i.e. the NSA’s unconstitutional mass surveillance system] after 9/11 was adopted but was significantly changed for the worse, both in design and in operational rules. This part, for instance, contained the software for encryption and for automated tracking of accesses to the collection files, and that code was deactivated.

Looking at the history of The Program, it is pretty clear that there were operational reasons why the software was deactivated and the Fourth Amendment skirted.

– First, they did not get any warrants initially and they did not want to have to get warrants. Even later when the program was “legalized,” the government successfully insisted that it be allowed to obtain group rather than individual warrants for the material coming under FISC. As of FAA of 2008, the FISC could not turn down such a warrant request, although the Court could insist on modifying it.

– It is obvious that they wanted to be able to look at the identifying information of any US person communications or metadata that they collected – the claim that they have only numbers and email addresses is quite disingenuous. They could easily go to the telcos and IT firms and ask for it, or provide them a National Security Letter that does not require a warrant, not to mention the availability to anyone of reverse white pages and the fact that many email addresses contain the user’s name.

– The automated tracking of all accesses to the database was always opposed by analysts who feared their individual levels of productivity would be compared. But surely the main reason why the government deactivated it was so that there would not be a high probability that unauthorized use of the material would be detected. Otherwise, why would they deactivate a far less labor-intensive system that is not only efficient but also virtually foolproof (except maybe from abuse by a system administrator).

– Remember that the 12 unauthorized “Lovint” cases [where NSA employees were caught spying on love interests] were detected through routine polygraphs, or at least so I once read.

– Initially, if you recall, compliance was monitored only through a) paper files containing the authorizations to analyze US person communications that could be issued by 22 or so designated persons and b) the observation of human supervisors. This was what Hayden said in his 1/06 press conference, I believe, and it was often repeated thereafter. Snowden shows and NSA admits that in some cases all the analysts have to do is fill out a brief computerized form, choosing among “canned” rationales for access to a given file. Further, it has been admitted publicly that use of the data now extends beyond its initial confinement to counterterrorism.

– As the extensively-sourced Reuters article above indicates, this databased material already is being used for criminal cases and has been withheld from the courts — so doubtless NSA does not want that practice to be automatically tracked.

– Further, Russell Tice has alleged that there are extremely compartmented sub-programs in which US opinion leaders and high-level officials are deliberately tracked. Again, NSA obviously would not want such activity to be subject to automated tracking.

Washington’s Blog also asked senior NSA veteran Bill Binney why he thought NSA switched from an automatic privacy-protecting encryption program to its current dragnet.

Binney told us:

When you drop the privacy protections, you are able to spy on all your political opponents and do the things that the IRS does plus get rid of people you don’t want in government, like General Petraeus and General Allen and others like Elliot Spitzer, etc.

The data they used against Spitzer was from what I understand: phone calls, e-mail and money transactions. All part of this mass collection of data.

Others were confronted with their data too. Like [Pulitzer prize-winning New York Times investigative reporter] Jim Risen, [chief Fox News Washington correspondent] Jim Rosen, AP, Jesselyn Radack [former ethics adviser to the United States Department of Justice, and attorney for Edward Snowden, Thomas Drake and other high-level whistleblowers], the NSA whistleblowers Thomas Drake, Kirk Wiebbe, me, etc. In at least our case, they had a warrantless wire tap on us as early as May 2006.

Further, you can target Supreme Court Judges, other judges, Senators, Representatives, law firms and lawyers, and just anybody you don’t like … reporters included.

Not to mention the tea party and other politically active or wanna be’s.

It also meant they did not have to go to the FISC [Foreign Intelligence Surveillance Court] to get a warrant to look into US citizens.

With or without shortcomings in encryption design and implementation, all encryption can be defeated in time due to a combination of Moore’s Law, brute-force. So, the violation of the 4th amendment lies not simply in whether we “store it encrypted or not”. IMO, collecting without a warrant is an unreasonable search.

WriteInVote NOeVoting

Even if they did manage to keep everyone else out, they must not be able to play back every private moment of people’s lives. It’s electronic rape.

WriteInVote NOeVoting

“Binney’s system automatically encrypted information about Americans … but that information could be decrypted if a judge ordered that a specific American was a bad guy or was connected with a bad guy.”

What kind of BS is that? Are you actually saying it’s o.k. to collect all Americans encrypted info and decrypt it only with a warrant? That’s Obama’s line. NO mass collection.

They will be collecting every private, personal thing we do, and if they get a warrant, they will have access to it all. That is the definition of evil. Life cannot be lived in a potential fish bowl.

therealamericro

Who really thinks the NSA mass surveillance is being used to reign in the banksters who machinate economic collapse for their own profits, who launder money for drug cartels and terrorist organizations in offshore accounts?

These programs are here not to defend us from “terrorism” (https://www.youtube.com/watch?v=5LDw7ppLK7w) but to destroy companies someone with a security clearance doesn’t like, to ruin their business relationships, to discredit and destroy the reputation and lives individuals whose online comments someone with a security clearance doesn’t like in online false flag operations, hacks
and strategic releases of illegally obtained or hacked emails and or information (https://firstlook.org/theintercept/2014/02/24/jtrig-manipulation/) – which is as ethical, moral, legal and sane as the government liquidating people who’s hair styles they don’t like.

No probable cause, no due process, just the massive, unconstitutional abuse of power, for the sake of maintaining and increasing power.

It is all about building and maintaining a 24 hour, 7 day a week government controlled Ministry of Truth using online trolls who engage in propaganda because the out of control governments’ arguments, logic and reasons for idiotic domestic and foreign policies are invalid, and therefore
lies have to be told to convince the sheeple that it is in their interest.

It is politically motivated investigations and trumped up charges for reporting facts.

It is 1984.

It is high treason.

nia holder

Is it possible that this would ferret out any leaks and all whistleblowers…giving the executive branch the “independence” since Watergate the neocons have always wanted? I am old enough to remember those times, the phone tapping, Intel gathering and Nixon’s administration paranoia. The wreaking crew put those last details in place at 9/11.

David Petraitis

I am more interested in the raw power aspect of this thesis, George. In a power play there are some powerful actors who are hurt by it as well. In this case the sales of American tech giants has now been curtailed. Cisco complained about NSA meddling with shipments, Microsoft WIndows 8 is banned by the Chinese government as a platform. The surveillance industrial state will be at odds so with the tech industrial state. The power plays will get more interesting, methinks.